Feds please no one with first official net neut rules

Battle of the ideologues enters eighteenth act

The US Federal Communications Commission has officially approved rules meant to ensure "net neutrality". But it's unclear whether the commission has the legal authority to back them up. And whether it does or not, just about everyone thinks the new rules are crap, including net neutrality zealots.

The rules demand that internet providers divulge their "network management" practices, and they prohibit providers from blocking certain traffic. But they apply separate regulations to wireline and wireless outfits, and they don't specifically prevent providers from charging extra for prioritized traffic – though they do say such arrangement would "raise significant cause for concern".

The FCC approved the new rules on Tuesday after a 3-2 vote, which split – predictably – along party lines. Democratic commissioners Michael Copps and Mignon Clyburn joined Democratic Chairman Julius Genachowski in supporting the rules, while Republican commissioners Robert McDowell and Meredith Attwell Baker voted against.

"For the first time, the FCC is adopting rules to preserve basic Internet values," Genachowski said in a canned statement. "While the Commission had in the past pursued bipartisan enforcement of Open Internet principles, we have not had properly adopted rules. Now, for the first time, we’ll have enforceable, high-level rules of the road to preserve Internet freedom and openness."

In August 2005, the FCC laid down a policy statement (PDF) meant to encourage a so-called open internet, but these policies never had the legal power the FCC would have liked. In April, a Federal appeals court unanimously vacated the 2008 FCC order that famously barred cable giant Comcast from busting BitTorrent traffic.

In September 2009, five months after he was installed by President Obama, Genachowski proposed formal net neutrality rules that would expand on the 2005 principles, and following months upon months of debate, the rules have arrived in a form few outside of Genachowski are pleased with. Even Coops and Clyburn concurred with the rules only in part. And net neutrality advocates are accusing President Obama of breaking his campaign promise to prevent corporate censorship on the interwebs.

The FCC's rules begin by stipulating that both wireline and wireless net providers must be "transparent" about how they manage their networks. "A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings," says rule number one.

The new rules also prohibit wireline providers from blocking internet traffic – subject to "reasonable network management" – but they take a different approach to wireless. Wireline providers "shall not block lawful content, applications, services, or non-harmful devices," while wireless providers are prohibited from blocking "consumers from accessing lawful websites." But wireless providers are specifically barred from blocking applications that compete with their voice or video telephony services.

Lastly, a third rule bars wireline providers from discriminating against network traffic. "A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination," it reads. It does not address wireless networks.

The rules do not specifically ban providers for charging extra for prioritized traffic, but they do say that the practice is "unlikely" to satisfy the ban on "no unreasonable discrimination."

"A commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic in the connection to a subscriber of the broadband provider (i.e., 'pay for priority') would raise significant cause for concern," they say.

In his prepared statement, Copps said that although he voted for the new rules, he's concerned that they don't specifically prohibit pay for priority. "I would have preferred a general ban to discourage broadband providers from engaging in 'pay for priority' — prioritizing the traffic of those with deep pockets while consigning the rest of us to a slower, second-class Internet," he wrote. He also wanted complete parity for wireline and wireless.

"After all, the Internet is the Internet, no matter how you access it, and the millions of citizens going mobile nowadays for their Internet and the entrepreneurs creating innovative wireless content, applications and services should have the same freedoms and protections as those in the wired context," he said.

The world's net neutrality zealots are making similar noises. “Chairman Genachowski ignored President Obama's promise to the American people to take a 'back seat to no one' on Net Neutrality," reads a statement from Free Press managing director Craig Aaron.

"He ignored the 2 million voices who petitioned for real Net Neutrality and the hundreds who came to public hearings across the country to ask him to protect the open Internet. And he ignored policymakers who urged him to protect consumers and maintain the Internet as a platform for innovation. It’s unfortunate that the only voices he chose to listen to were those coming from the very industry he’s charged with overseeing."

And he was not alone. "The rules passed today by Obama FCC Chairman Julius Genachowski absurdly create different corporate censorship rules for wired and wireless Internet, allowing big corporations like Comcast to block websites they don't like on your phone – a clear failure to fulfill Net Neutrality and put you, the consumer, in control of what you can and can't do online," reads one online petition seeking to hold President Obama accountable for his campaign promises.

Copps also seems to question whether the new rules have the proper legal muscle behind them. The Democratic commissioner advocated the reclassification of broadband traffic as telephony under Title II of the Telecommunications Act to ensure FCC authority, but this had yet to happen. "I continue to believe that a reassertion of our Title II authority would have provided the surest foundation for future Commission action," Copps said. "And I note with interest that the Commission’s Reclassification docket will remain open."

Republican commissioners Robert McDowell and Meredith Attwell Baker believe that if the FCC attempts to enforce the rules, it will just wind up in court. Again. ®

Update: This story has been update to clarify how the new rules treat "pay for priority" practices.